SUBODHA MOHANTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed challenging correctness of the order dated 16.03.2011 (Annexure-3) passed by opposite party No.2-District Magistrate, Balasore under Section 3(2) of the National Security Act, 1980 (for short, "N.S. Act") directing detention of the petitioner-Subodha Mohanta (for short "detenu"), in the District Jail, Balasore until further orders. The detenu has also challenged correctness of the order dated 24.03.2011 (Annexure-5) passed by the State Government in exercise of its power conferred under sub-section (4) of Section 3 of the N.S.Act approving the detention of the petitioner as directed by opposite party No.2.

(2.) The facts and circumstances giving rise to the present writ petition are that the petitioner was remanded to jail custody in connection with Balasore Town P.S. Case No.27 dated 28.01.2011 under Sections 147/148/427/294/153-A/120-B/506/149, I.P.C., Section 7 of the Criminal Law Amendment Act, Sections 25/27 of the Arms Act and Section 13 of the Unlawful Activities (Prevention) Act, 1967. The petitioner, after being taken into custody, moved for bail and in most of the cases he has been released on bail. By order dated 26.02.2011 (Annexure-1) Opposite party No.2 directed that there is every likelihood that the petitioner, who is in jail custody in connection with Balasore Town P.S. Case Nos.28, 31 and 36 of 2011 and IAPS Case No.3 of 2011, may be released on bail by the higher Court, even if, bail is rejected by the trial Court. There are many such precedents. Once the petitioner is enlarged on bail, there is every likelihood of his indulging in activities prejudicial to the maintenance of public order. With a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order, Opposite party No.2 directed that the petitioner shall be detained in jail until further orders. On 28.02.2011, vide letter No.246/C (Annexure-2), the petitioner-detenu was communicated with the grounds of his detention. Once again, on 16.03.2001, opposite party No.2 by his order bearing No.315/C passed a fresh order of detention (Annexure-3) under Section 3(2) of N.S. Act. Thereafter, the petitioner was served with another letter bearing No.322/C dated 17.03.2011 contending the grounds of detention which is same as letter under Annexure-2. Vide letter dated 26.03.2011 bearing No.351/C (Anneuxre-4), the petitioner was intimated, he may make representation against such detention which would be duly considered. The order of detention passed under Annexure-3 was approved by the State Government as per Section 3(4) of the N.S.Act vide order dated 24.03.2011 (Annexure-5). The detenu made a representation to the State Government on 29.03.2011 assailing the order of detention and by order dated 08.04.2011 (Annexure-6), the said representation has been rejected by the State Government. Hence, the present writ petition.

(3.) Mr. L. Samantray, learned counsel appearing for the detenu submitted that before passing of the orders under Annexures-3, 4 and 5, opposite party No.2 passed the order of detention and grounds of detention under Annexures-1 and 2 respectively. Mr. Samantaray vehemently argued that before passing the order of detention under N.S. Act, opposite party No.2 has not applied his mind as in the order of detention he has referred to only four cases pending against the detenu whereas in the grounds of detention 12 cases have been shown pending against the detenu. The grounds for detaining the detenu in jail custody under the N.S. Act are not at all tenable in the eye of law as a person cannot be denied of his civil rights and liberties and should not be put under preventive detention invoking the provisions of the N.S. Act only on the ground that the detenu may be enlarged on bail. The grounds of detention as mentioned under Annexure-2 show that while the detenu was in custody, 8 cases have been instituted against him implicating him under Section 120-B, I.P.C. during the period from 28.01.2011 to 05.02.2011. The grounds of detention indicate involvement of the detenu in various criminal cases. In those criminal cases, the detenu has been falsely implicated only to make out a case for preventive detention. Mere pendency of criminal cases against a person cannot be a ground for preventive detention under the N.S. Act so long it does not affect the public order. Passing of a detention order against a person in jail custody is illegal. The direction of opposite party No.2 to detain the detenu in jail until further orders is contrary to the provisions contained in Section 3(3) of the N.S. Act as the period of detention shall not exceed three months at the first instance. The fresh order of detention under Annexure-3 is not tenable in the eye of law on the face of previous order of detention under Annexure-1 as the subsequent order of detention under Annexure-3 has been passed to cure and get over the anomalies committed by the opposite parties in complying with the provisions of the N.S. Act. There being no provision in the said Act to pass 2 nd order of detention while the previous order of detention is in force, the detention of the detenu is wholly unjust and illegal.